Unexplained wealth orders (UWOs) are a relatively new concept in UK law.  The Unexplained Wealth Order (UWO) has been available to law enforcement since February 2018. UWOs are intended to bolster the Proceeds of Crime regime, by making it easier for law enforcement agencies to seize assets suspected of representing criminal property. They place significant demands on any high net worth individual (HNWI), company or trust that becomes the subject of one. Any subject of a UWO has to make sure they respond to it carefully and appropriately. This will require seeking legal advice from lawyers who have specific and proven expertise in this developing area of law.

Clarke Kiernan LLP is one of the few legal firms to have the necessary skills and experience. As a firm that is consistently highly-ranked in national and legal guides such as the Legal 500 for our work in fraud and financial crime. We have become the choice of many high net worth individuals and professionals who find themselves having to justify their wealth.

The National Crime Agency (‘NCA’) has openly stated it is considering UWOs as an investigative tool in “100s of cases”.   It remains to be seen whether the SFO will make use of the new powers particularly given the issues that the NCA have experienced (see below).

 

 

As applications for a UWOs are made on a without notice basis, the intended target of the UWO is not present and, therefore, is unable to put forward reasons why they should not be made the subject of an order. Unusually, the provisions do not include a direct right for a respondent to an UWO to vary or discharge it, if it is made in England or Wales.

It is therefore essential that a corporate or high net worth individual who is the subject of a UWO appoints expert solicitors who can identify and challenge any flaws in the approach taken in the application for the Order, or the decision to grant it.

As UWOs are a civil law device rather than a criminal law one, the authorities only require their evidence to be good enough to argue on the balance of probabilities. This is why your initial response to a UWO has to be carefully considered and carried out.

Any subject of a UWO must be quick to act. A subject of a UWO must provide a statement explaining how they legitimately acquired the assets. No response or an unsatisfactory explanation may give rise to a presumption that the property is recoverable under any subsequent civil recovery action. Civil recovery proceedings can then be commenced under Part 5 of Proceeds of Crime Act. Failure to comply with a UWO without reasonable excuse can lead to contempt of court proceedings. Providing false or misleading statements can lead to up to two years’ imprisonment.

If you are faced with a UWO, it is essential that you have the right approach from the outset, and this is why Clarke Kiernan are equipped to help. We can help in giving the right response: robust, intelligent and strategic defence of your right to those assets and, where necessary, a careful and timely coordination of all available evidence; wherever in the world it may be. Every aspect of the case that has been made needs to be assessed, questioned and challenged whenever possible.

The potentially dire consequences for those respondents targeted by a UWO means that this remains a key area for development over the coming months and years. HNWIs, PEPs and their advisors should keep a close watching brief and seek specialist legal advice if they have any concerns that they might be of interest to the NCA, SFO or other agencies with the power to obtain a UWO.

The civil recovery regime that UWOs are part of is a highly specialised area of law involving complex High Court litigation. It is only practised effectively by a small number of lawyers and requires experience and specialist expertise. We excel in the legal field that UWOs are part of and we believe that they will become increasingly common. And this will mean that many more people will need to know precisely how to respond to them.

Our background in challenging restraint orders and freezing orders issued under POCA – to freeze a person’s assets before a legal attempt is made to confiscate them – leads us to believe that UWO’s could well see many innocent people fighting to retain their assets. Contesting any aspect of a UWO will make all the difference to an individual’s ability to retain what is rightfully theirs.